What is Judicial Review ?

Judicial review is the courts’ power to state that the acts of other government branches are unconstitutional and therefore unenforceable. In other words, judicial reviews question the way, in which a decision has been made, rather than the wrongs and rights of the reached conclusion. For example, if Congress was about to pass a law that would ban newspapers to publish certain information, courts would have the authority to state that this law violates the First Amendment and thus is unconstitutional. State courts also have the power to accept their own state’s law based on federal constitutions or state.

Today, judicial reviews are taken for granted. This is one of the main characteristics of the U.S. government. Almost every day, court decisions made around the country retort federal and state rules, being unconstitutional. Some topics of these laws include same sex marriage, identification laws for voters, gun restrictions, abortions, surveillance programs of government, etc. All of these topics are very actual that even students at universities have to write various projects on them, like generic essay on same sex marriage.

Examples of the kinds of decision, which can be reviewed within the judicial review:

Decisions connected with prisoners’ rights.

Decisions of regulatory bodies.

Decisions of the immigration authorities and immigration Appellate Authority.

Decisions of local authorities in their duties to provide certain welfare benefits and special education for kids in need of education.

Judicial review also exists in other countries. Recently in Romania, the law granting immunity to lawmakers and banning certain kinds of speech against public officials was refuted and said to be unconstitutional. In Greece, the courts have ruled that it is unconstitutional to do wage cuts for public employees. In the European Union, the legal system gives the power of judicial review to the Court of Justice of the EU. The power of the judicial review is also awarded to the courts in Japan, India, Canada, and other countries. As we see, giving courts the power to review the acts of other government branches is a trend around the world.

However, it was not always like that. In fact, the idea that the courts can refute the laws passed by the legislature appeared when the United States was created. In the system of civil law, judges are considered those who apply the law with no authority to destroy or create legal principles. In the common law system of Britain, on which the American law bases, judges are considered the sources of law, able of creating new legal principles and rejecting the ones that are not valid anymore. However, as there is no Constitution in Britain, the principle of court refuting a law as unconstitutional was not relevant in Britain. Besides, even today Britain is attached to the idea of legislative supremacy. Thus, judges in the UK don’t have the power to overrule laws.

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History of the Judicial Review

The principal of the judicial review has its roots in the principle of separation of powers, which was introduced by Baron Montesquieu in the 17th century. However, the judicial review did not arise from its force until only a century later. Its principal appeared in the Federalist paper written by Alexander Hamilton who was the first to dispose the idea that legislatures should enforce the Constitution upon themselves. Later, he supported the power of the judicial review.

In spite of Hamilton’s support of the concept, the power of the judicial review was not written in the Constitution of the U.S. In the article 3 of the Constitution about the grant of power to the judiciary, it is said that it expands the judicial power to different kinds of cases, but it doesn’t say anything whether the executive or legislative action can be overruled. Instead, the judicial review was established in the classic case of Marbury v. Madison in 1803.

The story of Marbury is quite fascinating itself and can be a great topic of a study project. Students are often asked to share their opinion on the subject by writing an argumentative essay or coursework.

When Thomas Jefferson became the third president of the United States by getting a victory over John Adams, he became the first president who was not the Federalist Party member. He wanted to dispose Federalists from the judiciary by appointing non-Federalists instead. The Federalist judges would then be expelled.

During the last hours of his presidency, Adams appointed several Federalist judges including William Marbury. However, the commission has not yet been delivered when Jefferson sworn in and the Secretary of State – James Madison refused to deliver it to the Adams’s judicial appointments. Then, Marbury and other judges sued in the Supreme Court demanding an order to make Madison to deliver the commissions as they were created by Adams while he still was the president.

While it was obvious to everybody that the commission was perfectly valid and should have been delivered, John Marshall – the Supreme Court Chief Justice –worried there might be a conflict between the Court and the newly elected President, which could have destabilized the situation for the young and experimental government. Besides, Marshall could not rule that the commissions could not be delivered, when it was obvious that they were proper.

Instead, Marshall and the Court decided the case on the procedural grounds. The reason the case was in the Supreme Court was due to the Judiciary Act of 1789 that allowed giving writs of mandamus. However, it also said that the Supreme Court can handle such cases only if they referred to ambassadors, foreign ministers or consuls, while the state was a party. It means, you can appeal your case, but you can’t bring it to the Supreme Court in the first instance. As Marbury was not an ambassador, foreign minister or consul and the state was not a party, the Constitution didn’t allow the Supreme Court to claim original jurisdiction over the case. Thus, the court questioned whether Jefferson and Madison acted properly in denying Marbury’s commission. Since the Court had no jurisdiction over the case, it was dismissed.

Even though, the result of the case was in Jefferson’s favor, it was the first time in the United States when the court refuted a statute as being unconstitutional.

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Expansion of the Judicial Review after the Case of Marbury v. Madison

Since the case, the power of the judicial review has been greatly expanded by the Supreme Court. In 1816, during the Martin v. Hunter’s Lessee, the Court ruled that it may review the civil cases of state courts, if they fall under constitutional or federal law. A few years later, the same was determined for criminal cases of state courts. In 1958, the judicial review was extended even more, giving the Supreme Court the power to overrule any state action – legislative, executive, or judicial, if it is considered unconstitutional.

Nowadays, there is no serious opposition to the principle that all courts have the power to refute the legislation or executive actions that are inconsistent with the federal or applicable to state Constitution.

The Impact of the Judicial Review

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In 1954, in the case of Brown v. Board of Education, the Supreme Court refuted state laws founding separate public schools for white and black students on the basis they frustrated the article of «equal protection» article of the 14th Amendment.

In 1963, in the case of Gideon v. Wainwright, the Supreme Court made states to give counsel in criminal cases for the defenders in need who were being charged for the commission of a felony and could not afford the counsel.

In 1967, in the case of Loving v. Virginia, the Supreme Court refuted the statute of Virginia that banned interracial marriages.

In 1969, in the case of Brandenburg v. Ohio, the Supreme Court refuted the state criminal laws that punished people for incitement unless that speech was intended to provoke some illegal actions.

In 1972, in the case of Furman v. Georgia, the Supreme Court temporarily stopped death penalties by ruling that state death penalty statutes were not applied consistently.

In 1973, in the case of Roe v. Wade, the Supreme Court refuted the laws that made abortion illegal.

In 1976, in the case of Buckley v. Valeo, the Supreme Court refuted spending limits on people and groups who wanted to use their own money to support or promote a political candidate or their message.

In 2003, in the case of Lawrence v. Texas, the Supreme Court refuted sodomy laws in 14 states, making the sexual activity of same-sex people legal in all the states of the USA.

In 2010, in the cause of Citizens United v. Federal Election Commission, the Supreme Court rejected a federal election law that put limitations on spending on advertising by corporations and other associations during the election.

In 2012, the famous «Obamacare» decision upheld the Patient Protection and Affordable Care Act.

Even though, some of the decisions mentioned above stay controversial, none of them would have been possible without the judicial review. In each of these cases the Court used its power of the judicial review to indicate that the act by state or federal government was invalid or ineffective because it contradicted a constitutional position. It is this power that makes courts a co-equal government branch with the legislative and executive branches and lets it to defend people rights against potential intrusion by those branches.

Laws that Limit the Judicial review

Although the Supreme Court keeps on reviewing the constitutionality of statutes, Congress and the states still have some power to influence what cases can come before the Court. For example, Congress has the power to make exceptions to the Supreme Court’s appellate jurisdiction, which is known as jurisdiction stripping.

In 1868, there was another way for Congress of trying to limit the judicial review – a bill was proposed according to which there should have been two-thirds majority of the Court in order to recognize any act unconstitutional. However, this measure was not approved by the Senate.

There were many other bills proposed in Congress that demanded the Court’s supermajority in order to exercise judicial review. Today, the constitutions of two states require a supermajority of the Supreme Court justices in order to apply the judicial review: Nebraska and Nevada.

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